Attorneys for Ms. Lindor's son, who is targeted by the RIAA's letter, and for defendant, both opposed the application, and defendant moved to strike the report for failure to comply with the Federal Rules, and to mandate in-person, as opposed to telephone, conferences for plaintiffs' Denver, Colorado, attorneys.

The above donation button links to a PayPal account established by Marie Lindor's family for people who may wish to make financial contributions to Ms. Lindor's legal defense in UMG v. Lindor. Contributions are not tax deductible.

23 comments:

Anonymous
said...

I may be wrong here, but even if he was running KaZa from a external drive, the application would still show up in the registry settings of the main drive of the computer. (Otherwise, the outside world would be unable to get share access to the necessary directories.)

IANAL - but based upon the strategy in the Thomas case, it's probably likely that the RIAA will ask the court for permission to allow a jury to find an inference that because the data was copied from another drive, that there was maliciousness or bad faith involved. That inference needs to be attacked head on.

Also - the "expert report" does not contain certain fundamental information such as the operating system (Windows XP, 2000, 98, etc), what revision (whether any service packs or other major updates were installed), and whether any access controls existed on the files.

By default, Windows XP attempts to isolate user files, so user A of a computer cannot access user B's files that are stored in the "Documents and Settings" folder. This is true even if the users are "Administrators." Generally, when new users are created on an XP system, they are by default given "administrator" rights.

So when Dr. Jacobson states that Woody was an "administrator," he is trying to imply that the user had full rights to access every file on the system, but that is not necessarily true. This can be verified by taking a newly set up XP system, creating one user, then creating another user and attempting to access her files in the "Documents and Settings" files - you'll get an "access denied" message even though the users are both administrators. While it's likely that an administrator could access files on an external hard drive because those aren't locked by an ACL, just because someone on the computer accessed jeanlindor@yahoo and had the person's resume, doesn't mean that same account accessed the downloaded files.

I, for one, wouldn't trust the ever-RIAA-friendly, Magistrate Judge Levy to be any stickler for the rules when it comes to these cases.

As for the Plaintiff's contention, they contend that they have only discovered this now? What's with this Doug Jacobson? Is he learning about computer forensics on-the-job? This is stuff he just happened to miss before, but he has found it now? And will there be something else tomorrow? Why was he even going back and doing more investigation after he'd already issued his supposed final report? And what information specifically tells him that this external drive was connected?

And very importantly, can he identify it as a specific Western Digital drive, or only that it was a WD drive with an apparent capacity of 100GB?

Suppose such a drive was connected, but it wasn't Woody's drive? Can Woody be held responsible for that? (I.e. a friend came over, they played some music on the friend's hard drive, after which said friend disconnected the drive and left with it?)

Also, can this alleged Dr. Jacobson tell you EVERY IP address this computer ever had? Or only the last, seemingly non-NATted, address? Without an entire history of every IP address ever used, who knows what it was connected to when?

Interestingly, he admits on item 18) that he was looking at saved e-mails. Is he allowed to look at saved e-mails? Are e-mails evidence of file sharing? Is this man a voyeur of other people personal information on hard drives that he gets his hands on?

Also item 26) that he is reading personal documents (resume) on the computer for content? Was his investigation allowed to read personal documents by non-defendants on the drives he investigated?

If there was ever an argument for hard drive inspections to only be performed by neutral parties, who are only allowed to look for specified items agreed to in advance as relevant to the case at hand, THIS IS IT! I would destroy my hard drive, which doesn't even have music files on it, before letting this questionable old man get anywhere near it!

One thing here is VERY UNLIKELY. That thing is that KaZaA was installed and run from this, or any, external drive – that being the reason that no traces of the program were found on the drive(s) submitted. While not impossible, it is difficult and painful to install and run Windows-based programs from removable drives. It is a great amount of trouble, and still tends to leave Registry traces, system restore traces, and other traces on the system drive itself when it is done. I notice that the contention is that music files were on this alleged external drive, but not the KaZaA program itself. This seems more an attempt to impeach the non-party Woody, than that this drive is where the files haring was run from.

There is NO discussion at all in the supposed Dr. Jacobson's document about what evidence he uses to actually support his conclusions. Only the statement that he will testify to these issues at trial as the make-believe expert. Since I'm certain that the Defense has their own image of the drive in question, his lack of explaining how he came to any of these conclusions makes it difficult – likely intentionally so – for the Defense to be able to locate experts to refute them based on the actual drive's contents. Dr. Jacobson's declaration is more of, "Believe me, because I'm the expert here." That's a load of rubbish, and if these additional items can't be kept out entirely, he really needs to back them up fully now, not at some future trial date when there's no time to refute what he has spent many months now claiming to have put together.

Is it too late to challenge that MediaSentry was never licensed to investigate in the state of New York, and therefore everything that follows from their information is Fruit from the Poisoned Tree?

I like the idea that these things should be done in person, and in the state where the trial is to take place.

I couldn't get past the def'n of 'unallocated space'. I've always seen it used in the context of disk partitioning (i.e., if space is unallocated on the drive, you can create a partition out of it or, through use of utilitys, add the space to another partiion). Any data in that 'unallocated space' cannot be overwritten since the space is not available for the OS to write to (i.e., it is unallocated to a partition). There may be utilitys out there that allow you to recover files in unallocated (i.e., non-partitioned) space but I'm not aware of any. You certainly can access any sector of a drive via hex-editors but good luck trying to string that all together. I've always heard of disk space the way it is being described as 'free space'.

After having read through a couple of times, got a hard time understanding the relevancy of much of the data. Further:

- An external USB hard drive - Could'a been a borrowed disk. Say it was used prior to 7/8/2004. Was it used after? For how long? What song files were accessed? Were they on the list of shared items (if so, why not indicate - if not, then irrelevant)?

- Computer had a public IP address - If a computer is behind a router, it can have any address under the sun assigned to it. The address never makes it past the router. Any router can be set up to auto-assign any IP address to any connected computer.

- 'very few user created files and several e-mails' - Personally, I don't keep any data on my program drive, including mail. Beyond this, however, there's plenty of web-based e-mail programs that the use of would result in no e-mail being on the drive.

Concur with the comment above - the 'forensic' investigator had no authority/business looking at anything other than .mp3 files since that was the purpose of the trolling expedition. To have opened that .doc file and then publicly admit it is tantamount to gross invasion of privacy which was, I believe, one of the principal concerns at the outset of this witch hunt.

Anon:It is correct that you get that message, however as an admin you can take over ownership of the files and then change their permissions. As far as security goes it is more a step to prevent accidental changes to files, it does little or nothing to prevent intentional copy / read / permission changes.

Not to say that Dr. J. is anything but full of hooey 99%* of the time however.

* I say 99% percent because he probably has his name / address / etc correct :P

Since they are stating dates during the time of the investigation were found on the drive, this does not allow them to allege the drive was swapped or reformated. Since this "expert" says KaZaA was not installed on it it would be impossible for this to be the drive that was detected.

The fact that some songs were played from an external drive does not prove anything. These songs could have been ripped from owned CD's, which is permitted by law. Nothing stated in the report changes that.

#15 and # 20 directly conflict. In #15 he states the defendants computer was the one that was used with the KaZaA program to upload and download files. However in # 20 he states KaZaA was never installed. It seems quite impossible to upload/download with a program that was never installed....

#16 states the computer had a public IP address. The second part about absence of a router is NOT PROVEN by this statement. Most broadband routers made can place one computer in a DMZ. This allows the one workstation to use the public IP, while still allowing the connection to be shared by other computers. Thus if this computer was in a DMZ, it does not exclude the possiblilty if the router was wireless that another machine was connected via this means and was running KaZaA.

In fact, the computer I am typing this is configured in this manner. My Linux Workstation/Server is configured with my public static IP. My router has this machine in its DMZ, but that does not prevent the other 4 machines and my network printer from operating on the internet.

I also find it quite interesting that while he says "public IP", he does not state it is the same as the IP that MediaSentry found, which im sure would have been stated if true. We dont even know if it is the same subnet, as the IP found was never stated.

Also, he makes a big deal about usernames. Just because a specific username was used for an activity, this does NOT prove the person whose name matched the username was the one that did it. Many people just let guests sit down at the machine and use it, so many people may use a single username. The example cited by Slom is an example of this, a file owned by username yanick being played by user woody.

#23, he states woody was the administrator. Unless changed, it is also very likely that the other 2 names were also administrator as well, as this is the default in XP. Thus in this light, this fact may be meaningless.

#25 fails to disclose which username was used to access the Yahoo Account. Could be very likely the music and the Yahoo might have been accessed by a different name.

#26 doesnt disclose which user was the owner of the resume file

In any case, each of these facts might have some interest to some, but is not relevant to proving the Plaintiff's case. It actually tends to show that this computer was the actual computer used by the family. Since he admits that KaZaA was never installed on this machine, looks to me that the person they are after had to be using another machine.

I still don't understand why a motion to dismiss the case against Marie Lindor wouldn't be appropriate at this point.

The RIAA and Dr. J. have proven beyond a reasonable doubt that Marie Lindor's computer never had KAZAA on it. Since their claim is based on the "infringer" having used KAZAA, there's no way Marie Lindor could have been the "infringer".

If they drop the case with prejudice, they can still go after the "real infringer", whoever that may be. Since Woody is a non-party and not allowed to recoup his legal fees, why would he have to cooperate at all anymore unless/until the RIAA files suit against him. Maybe it's because they have no evidence against him either.

One thing struck me about Mr. Gabriel's letter. He makes a statement about how Ms. Lindor's son said he had never changed the hard drive on her system, and that this is now in question. I plug in and remove external hard drives multiple times a day to multiple computers. No person I have ever met would consider that changing a computer's hard drive. That statement can't be allowed to stand; it is a distortion, and I would hate to see a judge think that such a statement is valid.

It must be nice to be able to introduce evidence whenever you feel like it. I thought there were rules about that.

Seems to me the RIAA just admitted they have no case against Marie Lindor. They can't use this case to leverage a case against another party.

Using an external hard drive with music on it to play songs in windows media player is not tantamount to sharing files - even if sharing files was illegal, there's no evidence files were shared.

It seems as if this is just the same as saying: some user put a CD in the drive and listened to it. The RIAA has no right to say where a person can listen to music. If I want to listen to a CD, I can take it from my home stereo, put it in my computer, listen to it, take it from my home, put it in my car, loan it to a friend, whatever. For all the RIAA knows, the hard drive could be a loaner.

Finally, they asked for the computer's hard drive, and they got it. Maybe they should have asked for everything that was ever in or attached to the computer. Since they didn't, then it's their loss.

Ray: Your right, everyone calling themselves anonymous does make it hard to reference other posts.

Anonymous in post 3 may be onto something. Since they have *STATED* that kazza was *NOT* installed on this computer what are they trying to prove.

Well how does this go for RIAA logic: there was removable hard drive not turned over to us. Doesn't matter that it may be a hard drive that was not physically in the defendants control, of course, and I'm sure the RIAA won't bring that up. Opps I went of track, and started using logic. Let me get back to RIAA thinking. Since there was a hardrive that was not turned over, the defendants can not be trusted to turn over all computers either, and therefore they are guilty.

It probably helpt to say the last part really fast and hope that no one notices there is no real connection between the two.

If you allow registered user comments to post without moderation, please be aware that a LOT of the comment spammers do their hit-and-run from a throwaway registered name. Thus allowing registered names to automatically post may let comment spam slide thru anyway.

Thus, if you want to prevent comment spam, and also ensure the posts do not violate your comment policy you really need moderation. Maybe you might be able to find someone here to help you with that.

It may be useful to you to require people to register to post a comment, then moderate their first few comments. After they have proven themselves trustworthy, allow their comments to go through without moderation. Just a thought.

Tim Berners Lee said something like "sometimes the only thing that saves society is the graffiti on the wall"

Anonymous speech should be protected at all costs.

As for having lots anonymous posters, of I think you overstate the problem. Be thankful for comments at all.

I.e. someone has gone out of their way to write to you. So no need to look a gift house in the mouth.

If you have a technical problem, then it needs a technical solution not a policy or legal solution. Just use the IP address to track who everyone is and give automatic endings to the usernames, e.g. anonymous1 and anonymous2.

Please allow people to post anonymously. There's little doubt these blogs are monitored by RIAA, so naturally people don't want even the slightest trace to be left of their connectedness to the issue, just in case.

It's entirely possible to have an iPod or other media player used as a mountable disk drive and thus it would seem to be perfectly legal and possible to play music directly off a media player device while Windows itself would only recognize it as an external disk drive.

The fact that music was played from a hard drive that is no longer connected is hardly exceptional and not indicative of any wrongdoing whatsoever

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove